Federal appeals court asked to weigh in on lawsuit over North Dakota political ad law

The Burleigh County State’s Attorney’s Office wants a federal appeals court to dismiss a lawsuit against the office accusing it of free speech violations.

Former state lawmaker Brandon Prichard in the suit alleges the state’s corrupt practices law, which criminalizes lying or making intentionally misleading statements in political ads, is unconstitutional.

Prichard claims he, his wife, Kathryn and his political organization Citizens Alliance of North Dakota were subject to an unfair investigation under the statute by the Burleigh County State’s Attorney’s Office, which forced them to self-censor their political speech. The Republican is a controversial figure in North Dakota politics in part for his attacks on incumbent Republican lawmakers.

Burleigh County State’s Attorney Julie Lawyer asked U.S. District Court Judge Daniel Traynor to toss the case. Lawyer in court records said that although her office had previously investigated the Prichards under the law, she declined to prosecute.

The Burleigh County State’s Attorney’s Office also brought charges under the statute in 2018 against legislative candidate Duane Sand, The Bismarck Tribune reported. Prosecutors later dropped the charges against Sand after those involved reached a private settlement.

Lawyer in court records said Prichard’s lawsuit should be dismissed in part because her office has decided not to enforce the statute moving forward.

The Burleigh County State’s Attorney’s Office also argued Prichard does not have standing to bring the case because he did not provide sufficient evidence that the agency has caused him harm, or that action by a court could address that harm.

ND attorney general, Ethics Commission dismissed from free speech lawsuit over political ad law

Traynor earlier this month denied the agency’s motion to dismiss the lawsuit. He wrote that Burleigh County prosecutors’ previous enforcement actions under the statute means the plaintiffs could face prosecution in the future, which may present a First Amendment concern.

Traynor in the order also hinted he may ultimately find the corrupt practices law unconstitutional.

Lawyer has since asked the 8th Circuit Court of Appeals to review Traynor’s ruling.

She has not yet submitted documents outlining her reasons for the appeal. Lawyer must file a brief detailing her arguments by June 23, according to court records

Lawyer did not immediately respond Tuesday to a request for comment.

Prichard in a Tuesday statement said he believes the 8th Circuit will deny Lawyer’s appeal.

His suit originally also named the North Dakota Attorney General’s Office and the North Dakota Ethics Commission as defendants, though the court granted those agencies’ requests to be dropped from the case. 

North Dakota Monitor reporter Mary Steurer can be reached at [email protected].